UQ Wire: DOJ Loses 9/11 Evidence Control Attempt

Synopsis: Judge Asserts Citizen Rights; Will Decide Discovery Issues, but DOJ Gains Seat Next to United Airlines Defense as Lines Now Drawn in First 9/11 Lawsuit. UAL and Justice Attorneys To Be Last Firewall Against Possible Mariani Access To Pre-9/11 documents, Airline Security Data/Programs - as Congress Remains Silent.

Photo By Kim D. Johnson, AP
911 widow Ellen Mariani, left, and friend four days after her husband's death in the World Trade Center disaster.

(New York City) On Friday, the Honorable Alvin K. Hellerstein, U.S. District Judge for the Southern District of New York, allowed Mariani vs. United Airlines (UAL), et. al. to proceed immediately into discovery after granting a Justice Department motion for temporary stay, ending on September 20, Scoop Media reported Saturday.

A letter from Attorney General Ashcroft’s Justice Department (DOJ) office - leaked earlier to Scoop Media - had indicated that DOJ was attempting to intervene to control the access to evidence in Hellerstein’s courtroom, among other motions. The letter had revealed that Bush Administration officials at the Transportation and Security Administration (TSA) were in effect tampering with witnesses already subpoenaed by plaintiff attorneys, advising them to send evidence and documents to the TSA.

(See… Justice Department To Attempt Shutdown of 9/11 Evidence )

The Judge also affirmed a Justice Department motion that the government be a party in the discovery process, effectively making the Justice Department a participant in Mariani’s case, while compromising on TSA representative Assistant U.S. Attorney Daniel S. Alter’s motion to consolidate single purpose, “sensitive security information (SSI), covered by statute to which the lawyers for Mariani did not object.

But Mariani’s lead counsel Mary Schiavo stressed that “the SSI category is very different than National Security, where we are into top secret areas, a big difference.”

Assistant U.S. Attorney Alter had earlier pressed the Judge, worried about discovery involving, “other government agencies,” and “secret information being disclosed,” presumably referring to documents validating the various news reports already on the public record linked to such entities as the Federal Bureau of Investigation (FBI), Central Intelligence Administration (CIA) and the Immigration and Naturalization Service (INS), etc. Alter called it, “avoiding a hole in the net.” But the Judge wasn't having any of it.

Hellerstein asserted rights in private citizen civil actions twice, deciding to promulgate a plan of evidence discovery that would include a few committees, so as, “not to compromise the ability of the plaintiffs in their separate and unique types of litigation.” This referred to scheduling and call systems, information, and discovery programs, as the Judge stressed his desire, “to be careful not to frustrate the process and control the litigation.”

Attorney John A. Greaves

The second time, he assuaged the concern of Mariani counsel John A Greaves that the consolidation could be too broad, affecting the flow of litigation. But Hellerstein again reiterated, “this is private litigation - not government litigation.” He added that “there has to be concern for private cases, so that [attorneys] can handle things in their own way.”

He asked Mariani's Los Angeles and Washington, DC plaintiff firm, Baum, Hedlund, Aristei, Guilford & Schiavo (Baum-Hedlund) - which specializes in airline disaster litigation - to prepare to present a discovery plan for requests of evidence, depositions, declarations, and other documents prior to September, when discovery is scheduled to commence.

And while other plaintiff attorneys were present, representing multiple clients in other legitimate cases surrounding 9/11 deaths, it was clear that the Judge wanted to get the ball rolling with the Mariani case. The Judge's skills in organizing the discovery seemed evident. But if the Judge was not pleased to receive the letter advising the unprecedented DOJ intervention in his court, it was never observable.

The Mariani case’s long trek toward what the plaintiff termed as, “justice and accountability for September 11,” had finally begun.

The Lady Who Refused Taxpayer Money from “the 9/11 ‘Shut-Up’ Fund”

Courtroom chatter turned to whispers when the New Hampshire widow entered. The large gathering of lawyers turned almost at once to look for the first time at the woman who had steadfastly refused since last year to accept taxpayer money from the 9/11 Victim Compensation Fund in exchange for promising not to sue the airlines or the government.

The Judge asked ten of the 15-20 defense attorneys to move in front of the rail separating spectators from the bar, near the two lead DOJ lawyers and UAL‘s lone lead attorney, “since there are more of you than the rest of us,” he smiled, affably motioning.

There were numerous other younger, well-dressed men and women frantically taking notes, as if their chances for government advancement depended upon it.

Hellerstein also waved more spectators and lawyers to move inside the entrance door to stand at the back of the crowded but small courtroom in the Lower District of Manhattan, as a court artist sketched him and the teams at the table with chalk colors. It was a somber and serious scene.

The widow had called the congressional airline bailout program, “nothing but a 9/11 ‘shut-up’ fund”, in prior news reports, so the suits assembled in the room already knew about her.

Twice, UAL’s lead attorney moseyed over to stand right behind where she was sitting to get a closer look, right after she entered the courtroom. Then she stood with her team and moved to the counsel’s table in front of the bar, opposite the defense team.

Ellen Mariani is the wife of Louis Neil Mariani, who died aboard United Flight 175 when Arab terrorists hijacked the jet and flew it into the South Tower of the World Trade Center.

“I really didn’t want to talk to him,” she told Scoop, after the UAL lead attorney from the Mayer-Brown firm mentioned that his mother and sister lived in New Hampshire too - attempting to smooth things over before the proceedings began. She had waited months for this moment: It was time for her new lawyers to represent her legal interests.

So intent upon holding UAL and the government accountable for her husband‘s death, Mrs. Mariani abruptly fired her original attorney, Chicago’s well-known airline disaster specialist Donald Nolan, just two Fridays ago, for not being aggressive enough in allowing her case to drag on since December 20, well into the summer.

The 25 or so lawyers present saw the new team at the table. They knew. Ellen Mariani means business. “They [the defense lawyers] don’t know me yet,” she told Scoop Media outside the courtroom.

She had previously seemed upset at the June 11 Victim Family rally in Washington, DC: “I’m mad; and I haven’t even really started grieving yet,” she told Scoop, adding, “I want action. And I want it now,” after trying to find the office of Congressional Joint-Intelligence Co-Chairman, Democrat minority whip Nancy Pellosi, the most powerful female in Congress.

During an informal press conference outside the courthouse prior to the hearing, Mariani told Scoop, “I do not want the government sifting through my evidence and disclosure, deciding for my attorneys what evidence we can or can’t have.”

“President Bush was briefed in July and August last year about a possible attack,” she had said; adding that, “my family and I need and deserve an answer that may become clear only during an open, fair, and complete investigation.”

Weeks earlier, she had said that “United Airlines didn’t do its job. The airport security was so poor that dangerous weapons were brought on Neil’s flight. It’s so sad.”

And clearly concerned about her Friday hearing, she added “I just pray the Judge won’t let the government control access to my evidence. Neil was taken from me in a ball of fire and the whole world watched.” But she’s enlisted the services of a major-league law firm.

“Scary Mary” Schiavo

Attorney Mary F. Schiavo

Ellen Mariani’s plaintiff team is led by former Inspector General for the United States Department of Transportation (DoT), partner Mary F. Schiavo and her co-counsels, former Comair-Delta Airline Captain John A. Greaves and Baum-Hedlund’s Washington D.C. office chief Cara J. Luther. Miss Schiavo, a licensed pilot and author, is considered one of the foremost aviation safety experts in the world. Senior partner and former engineer Paul Hedlund is also a key team member.

Schiavo earned the nickname, “Scary Mary,” during her controversial tenure at DoT for two White House Administrations from 1990 to 1996. Her New York Times best-seller, Flying Blind, Flying Safe, exposing gross security violations at the nation’s airports, forced a congressional hearing.

Her DoT staff, “was able to sneak guns, knives, grenades, and fake bombs onto planes 75 % of the time in 1992-93,” according to an April, 2002 Ladies’ Home Journal feature article.

Mary F. Schiavo – Taking A Stand – Source - Ladies' Home Journal

The Federal Aviation Administration (FAA) promised to fix the problems; but Schiavo repeated the investigation and still produced significant security lapses in 1995 and 1996. The FAA, “went into overdrive to try to get the report classified,” [as sensitive security information (SSI)] Schiavo alleged in the, “American Women - Hear Us Roar”, Journal interview.

“They [DoT] were clearly waiting for people to die. I prepared for my letter of resignation,” she said. Miss Schiavo was also an aviation professor prior to joining Baum-Hedlund.

UAL To Lean Heavily on Mayer-Brown’s Michael Feagley

Attorney Michael R. Feagley From Mayer-Brown firm in Chicago
Lead attorney for United Airlines.

Lead counsel for United Airlines, airport security, and insurance firms’ defense are partner Michael R. Feagley of multinational firm Mayer, Brown, Rowe & Maw (Mayer-Brown) and Assistant U.S. Attorney Daniel S. Alter, with co-counsel, Assistant U.S. Attorney Sarah S. Normand, representing the Transportation Security Administration (TSA) and the Department of Justice (DOJ), headed by U.S. Attorney General John Ashcroft.

Mayer-Brown is a powerhouse multinational firm, with offices in numerous Western European countries and the United States. Interestingly, its website lists such clients as Enron Corporation, both of whom maintain offices in the Caspian Sea basin in Tashkent, Uzbekistan - near Afghanistan; German corporation Bayer AG - maker of cipro, the antibiotic used to treat anthrax; and German banking giant, Deutsche Bank, for electronic commerce activities. According to wide reports, two of the September 11 terrorist hijackers maintained bank accounts at Deutsche Bank, including leader Mohammed Atta.

Michael Feagley, a Mayer-Brown lead attorney in more than 35 jury and bench trials, and evidentiary hearings, is a recognized expert in witness testimony and evidence. And like 9/11 Victim Compensation Fund Special Master Kenneth Feinberg, Feagley is an also an authority on alternative dispute resolution techniques - the art of bringing parties together to compromise in legal disputes. His law firm biography lists the art of avoidance of and preparation for potential future litigation as an additional key area of expertise.

Mayer-Brown’s website also lists a connection to President Bush’s family, in that one of its partners, John P. Schmitz, personally represents and lobbies for both Enron and Bayer AG, while also sitting on the Trustee Board of Bayer Foundation. Moreover, Schmitz, fluent in German, was White House Deputy Counsel when George H. W. Bush was both President and Vice President, making the story’s legs that much more interesting.

But Michael Feagley has a job to do. His life has been dedicated to defending the legal rights of corporations who depend upon his unique litigation skills and talents. But this will not be a cut and dried, undemanding case. There were a lot of concerned attorneys in Judge Hellerstein’s courtroom.

“Justice for our Clients”

The Mariani team also made itself available to the media before and after the hearing; and while reporters looked outside for members of the defense, none were available. Before the hearing, John Greaves had told the media “We are ready to go to discovery. Why is discovery delayed?”

“I think the government’s got a right to be involved,” he added. “But I don’t want them to have carte blanche. Heck, they don’t want us to see the documents.”

Afterward, Greaves seemed to feel he received a fair shake after hearing Judge Hellerstein rule that he would personally make the decisions on discovery documents as things progressed.

And Mary Schiavo reported that all her cases were, “good to go,” while disappointed that she was forced to put her clients through unprecedented, closed courtroom, individual phone conferences in a last minute pitch by Victim Fund Special Master Kenneth Feinberg on Thursday.

Feinberg warned them about, “suing airlines” and ,“you could lose the case.” But Miss Schiavo said all her clients refused his, “you don’t have to do this - you can come to the [Victim] fund” entreaties. And “Scary Mary” would not let up to CNN. “Why this furious attempt to stop discovery?” she said. “This is unprecedented. The government is intervening to control discovery on behalf of the FAA, the TSA.”

John Greaves added, “We want justice for our clients. And we want to reach some common ground with the court.”

Big vs. Little

Mother of the bride Ellen Mariani, left, and Lauren Coleman, second from left, look on during a kiss between the former Gina Corcoran, center, and Chris Bronley, right, Saturday, Sept. 15, 2001, in the Westwood area of Los Angeles. Mariani's husband, Louis Neil Mariani, was aboard United Flight 175 when it crashed into New York's World Trade Center during Tuesday's terrorist attacks. The Marianis had taken separate flights to Los Angeles for their daughter's wedding. (AP Photo/Kim D. Johnson) - Source URL

It was over now. Ellen Mariani had completed a very busy and tiring two days. She knows her battle with the government and the airlines is just beginning; but after watching him, she thinks Judge Hellerstein won’t let the Justice Department just run roughshod through her case - blocking, manipulating, or cheating her out of the evidence she needs to prove it.

“I think he was very fair,” referring to Judge Hellerstein, as she finished a conversation with Scoop Media from her New Hampshire home. “I feel much better,” she said. “It looks like my case will finally move forward.”

Putting the cell phone away, about halfway down the New Jersey Turnpike between New York City and Philadelphia, it was exhilarating to have witnessed the courtroom commencement of one of those classic legal struggles between the little guy and a whole swarm of lawyers - a real struggle for justice and accountability.

This one’s a sure bet for the history books, whether she wins or not. Mariani was the very first one. And Neal Mariani has to be so proud of his feisty little wife, just now starting to
acquire the experience to articulate and parry with the hordes of reporters who keep asking so many questions.

She’s a brave woman, that Ellen Mariani. Her courage in standing up for the legal rights of all the 9/11 victims should be an inspiration to Americans. Now we know who she is. But her stirring story is just beginning.

And you have to feel that Neal Mariani has about 2,799 other friends proudly smiling too.

(c) Tom Flocco, 2002, Used by permission

©, Tom Flocco 2002

* - Tom Flocco is an independent investigative journalist, having previously written for Scoop.co.nz, AmericanFreePress.net, WorldNetDaily.com, FromTheWilderness.com, NewsMax.com, NarcoNews.com, and JudicialWatch.org. Contact: TomFlocco@cs.com

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